FIRST DIVISION

[G.R. No. 128536. January 31, 2000.]

P/INSP. ROQUE G. GALANG , petitioner, vs . COURT OF APPEALS and

PEOPLE OF THE PHILIPPINES , respondents.

Francisco M. Gutierrez for petitioner.

The Solicitor General for respondent.

SYNOPSIS

In an information filed before the Regional Trial Court of Romblon, Odiongan, petitioner
was charged with homicide for killing one Carlos G. Oro. After due trial, the trial court
rendered a decision finding the petitioner guilty beyond reasonable doubt of the crime of
homicide, and, with neither aggravating nor mitigating circumstances, their attendance
having been offset by each other. Aggrieved, petitioner appealed the decision to the Court
of Appeals, but on November 29, 1996, said appellate court promulgated its decision
affirming with modification the trial court's decision finding petitioner guilty of homicide
and appreciating the privileged mitigating circumstance of incomplete justifying
circumstance of performance of duty. He was sentenced to six years of prision
correccional, as minimum, to ten years of prision mayor, as maximum, and ordered to
indemnify the heirs of Carlos Oro in the amount of P50,000.00 and costs. On March 3,
1997, the Court of Appeals denied the appellant's motion for reconsideration. Hence, this
petition. The main issue is whether or not the appellate court erred in convicting the
petitioner of homicide, and in not appreciating his claim of self-defense.
The Supreme Court found the petition is devoid of merit. The Court agreed with the Court
of Appeals that petitioner failed to prove his claim of self-defense. Unlawful aggression is
a condition sine qua non for the justifying circumstance of self-defense. There can be no
self-defense, complete or incomplete, unless the victim has committed unlawful
aggression against the person defending himself. In the absence of such element,
petitioner's claim of self-defense must fail. However, the Court ruled that the appellate
court erred in considering in favor of petitioner the privileged mitigating circumstance of
incomplete justifying circumstance of performance of duty. This circumstance cannot be
considered in view of the Court's own finding that the victim was disarmed and in a
kneeling position when petitioner mercilessly shot him from behind as he was begging for
his life. Accordingly, the petition was denied for lack of merit. However, the Court set aside
the questioned decision and rendered judgment finding the appellate guilty of the crime
charged and sentenced him to suffer the indeterminate penalty of 8 years and 1 day of
prision mayor, as minimum, to 14 years, 8 months and 1 day of reclusion temporal, as
maximum, to indemnify the heirs of the deceased in the amount of P50,000, and to pay the
costs.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; ELEMENTS

THEREOF; THERE CAN BE NO SELF-DEFENSE, COMPLETE OR INCOMPLETE, UNLESS
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 VICTIM HAS COMMITTED UNLAWFUL AGGRESSION AGAINST THE PERSON DEFENDING
HIMSELF. — To successfully claim self-defense, the accused must prove the existence of
all the following concurrent elements: (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to prevent or repel the attack; and (c) the
person defending himself must not have provoked the victim into committing the act of
aggression. Petitioner claims that he fired upon Carlos Oro after the latter pointed a gun at
him. The physical evidence does not support this claim. It was impossible for Carlos to be
facing petitioner because the bullet's trajectory was downward. Carlos Oro was in kneeling
position when petitioner mercilessly shot him from behind as he was begging for his life.
Granting for the sake of argument that unlawful aggression was attendant at the initial
stage, the same ceased to exist when Carlos Oro dropped his gun and was forced down
on his knees. The threat to petitioner's life was no longer attendant. He had no justification
for shooting Carlos Oro. When unlawful aggression ceases, the defender no longer has the
right to kill or even wound the former aggressor. Unlawful aggression is a condition sine
qua non for the justifying circumstance of self-defense. There can be no self-defense,
complete or incomplete, unless the victim has committed unlawful aggression against the
person defending himself. In the absence of such element, petitioner's claim of self-
defense must fail. AEDcIH

2. ID.; PRIVILEGED MITIGATING CIRCUMSTANCE; PERFORMANCE OF DUTY;

UNAVAILING IN CASE AT BAR. — The Court of Appeals erred in considering in favor of
petitioner "the privileged mitigating circumstance of incomplete justifying circumstance of
performance of duty as provided under paragraph 1, Article 13 in relation to paragraph 5,
Article 11 of the Revised Penal Code." This circumstance can not be considered in view of
the court's own finding that the victim was disarmed and in kneeling position when
petitioner mercilessly shot him from behind as he was begging for his life. "A peace officer
is never justified in using necessary force in effecting arrest or in treating with wanton
violence the arrested person or in resorting to dangerous means when the arrest could be
effected otherwise." Petitioner was a police officer. Policemen are bound by their duty to
protect life, liberty and property. As their position gives them a great deal of advantage in
case they decide to turn to the other side of the law, we must be more exacting and vigilant
in order to curtail the wrongful use of force for the better protection of the public.

DECISION

PARDO , J : p

The case is an appeal via certiorari from the decision of the Court of Appeals 1 finding
petitioner guilty of homicide and "appreciating the privileged mitigating circumstance of
incomplete justifying circumstance of performance of duty as provided under paragraph 1,
Article 13 in relation to paragraph 5, Article 11 of the Revised Penal Code," sentencing him
to six (6) years of prision correccional, as minimum, to ten (10) years of prision mayor, as
maximum, to indemnify the heirs of Carlos Oro in the amount of fifty thousand pesos
(P50,000.00) and costs. cdasia

Police Inspector Roque G. Galang was originally charged with homicide by information
filed with the Regional Trial Court, Romblon, Odiongan, Branch 82 which reads as follows:
"That on or about the 26th day of November, 1992, at around 8:30 o'clock in the
evening, in the Poblacion, Municipality of Alcantara, province of Romblon,
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 Philippines, and within the jurisdiction of this Honorable Court, the said accused,
with intent to kill, did then and there wilfully, unlawfully and feloniously shot with
a .45 cal. pistol, one CARLOS G. ORO, inflicting upon the latter, mortal gunshot
wounds in different parts of his body which were the cause of this death." 2

After due trial on plea of not guilty, on May 17, 1994, the trial court rendered decision
finding accused Police Inspector Roque G. Galang guilty, as charged, rejecting his claim of
self defense. The dispositive portion of the decision reads:
"WHEREFORE, premises considered, this Court finds the accused, Police Inspector
Roque Galang, guilty beyond reasonable doubt of the crime of Homicide, as
defined and prescribed under ART. 249 of the Revised Penal Code, and, with
neither aggravating nor mitigating circumstances, their attendance having been
off-set by each other, and applying the Indeterminate Sentence Law, he is hereby
sentenced to an imprisonment of eight (8) years and one (1) day of prision mayor,
as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum; (People vs. Raquito Y. Tolentino, G.R. No. 90766, 13
August '90); to pay the heirs of the victim, Carlo Oro, the sum of P30,000.00 as
damages; plus costs." 3

In due time, accused appealed to the Court of Appeals. 4

On November 29, 1996, the Court of Appeals promulgated its decision affirming with
modification that of the trial court, as set forth in the opening paragraph of this decision.
On March 3, 1997, the Court of Appeals denied accused-appellant's motion for
reconsideration. 5
Hence, this petition. 6
The Court of Appeals found the following facts:
"On November 26, 1992, the town of Alcantara in Romblon was in a festive mood
since the provincial meet was being held, in a cultural program hold "Sayawitan"
was scheduled that night.

"That day also happened to be the birthday of Carlos Oro, and, ironically, the day
of his demise. As it was his birthday, Carlos celebrated by going on a drinking
spree. At around 7:00 o'clock that evening, Carlos went home, drunk. After a while,
he left, never to return again. At around 8:00 o'clock, in front of the house of ex-
Governor Solidum, Carlos figured in an altercation with one Jojo Marcelo. Later
on, he similarly had a run-in with one Dennis Lota, who happened to pass by.

"Reports of the altercation reached appellant who, together with policeman Adreo
Galin and CAFGU members, proceeded to the place. Upon seeing Carlos, appellant
drew his gun and pointed it at him, and said: "Carlos, buhe-i imong baril, ako si
Inspector Galang" (Carlos, drop your gun, I am Inspector Galang). Carlos raised
his hands, saying: "Nong Roque, indi ako mag laban" (Nong Roque, I will not fight
back). Thereafter, appellant grab the right arm of Carlos and forced him to kneel
on the ground with his right hand behind his back still being held by the appellant.
It was in this position when appellant pumped two (2) bullets into Carlos who
slumped to the ground. Appellant ordered his men to get a tricycle to bring Carlos
to the hospital. He was pronounced dead upon arrival." 7

At issue is whether the Court of Appeals erred in convicting the petitioner of homicide, not
appreciating his claim of self-defense.
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 We deny the petition. cdtai

The rule is well established that factual findings of the trial court are binding on the
Supreme Court when supported by substantial evidence on record and carry more weight
when affirmed by the Court of Appeals. 8

In this petition, petitioner imputes as errors the Court of Appeals' failure to appreciate his
claim of self-defense and its reliance on the testimonies of prosecution witnesses.
We agree with the Court of Appeals that petitioner failed to prove his claim of self-defense.
Generally, "the burden lies upon the prosecution to prove the guilt of the accused beyond
reasonable doubt rather than upon the accused that he was in fact innocent." 9 However, if
the accused admits killing the victim, but pleads self-defense, 1 0 the burden of evidence is
shifted to him to prove such defense by clear, satisfactory and convincing evidence 1 1 that
excludes any vestige of criminal aggression on his part. 1 2 To escape liability, it now
becomes incumbent upon the accused to prove by clear and convincing evidence all the
elements of that justifying circumstance. 1 3
To successfully claim self-defense, the accused must prove the existence of all the
following concurrent elements: (a) unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to prevent or repel the attack; and (c) the
person defending himself must not have provoked the victim into committing the act of
aggression. 1 4
Petitioner claims that he fired upon Carlos Oro after the latter pointed a gun at him. The
physical evidence does not support this claim. It was impossible for Carlos to be facing
petitioner because the bullet's trajectory was downward. 1 5 Carlos Oro was in kneeling
position when petitioner mercilessly shot him from behind as he was begging for his life.
16

Granting for the sake of argument that unlawful aggression was attendant at the initial
stage, the same ceased to exist when Carlos Oro dropped his gun and was forced down
on his knees. The threat to petitioner's life was no longer attendant. He had no justification
for shooting Carlos Oro. When unlawful aggression ceases, the defender no longer has the
right to kill or even wound the former aggressor. 1 7
Unlawful aggression is a condition sine qua non for the justifying circumstance of self-
defense. There can be no self-defense, complete or incomplete, unless the victim has
committed unlawful aggression against the person defending himself. 1 8 In the absence of
such element, petitioner's claim of self-defense must fail.
However, the Court of Appeals erred in considering in favor of petitioner "the privileged
mitigating circumstance of incomplete justifying circumstance of performance of duty as
provided under paragraph 1, Article 13 in relation to paragraph 5, Article 11 of the Revised
Penal Code." This circumstance can not be considered in view of the court's own finding
that the victim was disarmed and in kneeling position when petitioner mercilessly shot him
from behind as he was begging for his life. "A peace officer is never justified in using
necessary force in effecting arrest or in treating with wanton violence the arrested person
or in resorting to dangerous means when the arrest could be effected otherwise." 1 9
Petitioner was a police officer. Policemen are bound by their duty to protect life, liberty and
property. As their position gives them a great deal of advantage in case they decide to turn
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 to the other side of the law, we must be more exacting and vigilant in order to curtail the
wrongful use of force for the better protection of the public. cdphil

IN VIEW WHEREOF, the petition is hereby DENIED, for lack of merit. We, however, set aside
the decision of the Court of Appeals in CA-G.R. CR 16954, promulgated on November 29,
1996. Instead, the Court hereby renders judgment finding accused Police Inspector Roque
G. Galang guilty beyond reasonable doubt of homicide, defined and penalized under Article
249 of the Revised Penal Code, with neither aggravating nor mitigating circumstance, their
attendance having been offset by each other, and applying the Indeterminate Sentence
Law, sentencing him to an indeterminate penalty of eight (8) years and one (1) day of
prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal, as maximum, to indemnify the heirs of the deceased Carlos Oro in the
amount of fifty thousand pesos (P50,000.00), and to pay the costs.
No costs in this instance. dctai

SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.
Footnotes

1. In CA-G.R. CR No. 16954, promulgated on November 29, 1996, Justice Oswaldo D.

Agcaoili, ponente, Justices Jorge S. Imperial and Buenaventura J. Guerrero, concurring,
Rollo, pp. 20-39.
2. Petition, Rollo, pp. 8-24, at p. 9.
3. Rollo, pp. 28-39.
4. Docketed as CA-G.R. CR No. 16954.
5. Rollo, pp. 41-42.
6. Filed on April 17, 1997, Rollo, pp. 8-26.

7. Court of Appeals' Decision promulgated on November 29, 1996, Rollo, pp. 28-39, at p. 29.
8. Valgoson's Realty, Inc. vs. Court of Appeals, 295 SCRA 449 [1998]; Polotan, Sr. vs. Court
of Appeals, 296 SCRA 247 [1998]; Gonzales vs. Court of Appeals, 298 SCRA 322 [1998];
Halili vs. Court of Appeals, 287 SCRA 465 [1998]; Lagandaon vs. Court of Appeals, 290
SCRA 330 [1998]; Salao vs. Court of Appeals, 284 SCRA 493 [1998].
9. People vs. Lati, 184 SCRA 336, 345 [1990].
10. People vs. Magaro, 291 SCRA 681 [1998]; People vs. Cawaling, 293 SCRA 267 [1998].
11. People vs. Macariola, 120 SCRA 92 [1983]; People vs. Atienza, 116 SCRA 379 [1982];
People vs. Valencia, 133 SCRA 82 [1984].
12. People vs. Sarense, 214 SCRA 780 [1992].
13. People vs. Aguilar, 292 SCRA 349 [1998]; People vs. Noay, 296 SCRA 292 [1998].
14. People vs. Aguilar, supra; People vs. Villamor, 292 SCRA 384 [1998].
15. Findings of Dr. Maximo Reyes (NBI medico legal officer).
16. Ibid.
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 17. People vs. Cawaling, supra; People vs. Bitoon, G.R. No. 112451, June 28, 1999, citing
People vs. Alconga, 78 Phil. 366 [1947].
18. People vs. Cario, 288 SCRA 404 [1998].
19. Chief Justice Ramon C. Aquino, The Revised Penal Code, 1987 edition, Vol. One, p. 205.

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